Patent Office Back To Approving Pretty Much Anything

from the you-get-a-patent!-you-get-a-patent!-you-get-a-patent! dept

In the late '90s and early '00s, the US Patent Office saw a massive jump in patent grants -- including tons of really, really bad patents, that have been tied up in huge, expensive lawsuits for years, wasting tons of judicial time and (more importantly) wasting a ridiculous amount of resources that could have (and should have) been going to actual innovation. Some of the research into what was going on showed that the incentive structure at the patent office was totally screwed up. Basically, the incentive was "when in doubt, approve." Why? Because patent examiners were judged on how efficient they were -- meaning how many patents they were able to complete their analysis of in the short amount of time they had. So here's the problem: if you approve a patent, you're done. If you reject a patent, the inventor (well, the lawyers) get an unlimited number of times to change the examiners mind, resubmitting modified applications. In other words, they can bury patent examiners in paperwork, dragging down their efficiency numbers. This isn't to imply that any patent examiner purposely decides to approve junk patents, but that it's impossible to ignore the incentive problem here.

Combine that with some ridiculously bad court rulings, that made things (software, business methods) that people previously considered unpatentable "fair game," along with some insanely large rewards in patent infringement lawsuits, and you had a recipe for disaster. Multiple studies showed that the cost of legal fights over patents greatly outweighed the actual value of those patents. And it was becoming a dangerous snowball: the more bad patents approved, the more bad patent lawsuits, the more bad patents filed, etc. What was interesting was that around 2004, as the debate on this started getting so much attention, the USPTO realized it had a problem and started adjusting things so that incentives were a bit more aligned. And, lo and behold, a lot more patents started getting rejected, and the approval rate went down. Many patent system supporters chided those of us who complained about the incentive structure by saying "see? everything's fine now, since the patent office knows to reject bad patents."

Not so fast.

Last year, the new bosses at the patent office decided that the number one problem was "backlog." No doubt about it, there is a huge backlog and the time it takes to get a patent is very, very long. But rather than realize that the way to decrease the backlog is to reject all bad patents (thus making it less lucrative to file bad patent applications), it appears to have gone back to the old system: implicitly setting up the system so that "when in doubt, approve," is the norm -- just to get through the backlog.

Of course, the unfortunate reality is that this won't actually solve the backlog problem at all. You would think, with all the engineering/operations brains at the Patent Office, that they would understand that this will only make the backlog worse. Approving junk patents only makes it more lucrative to file ever more ridiculous patent applications, which only increases the backlog. In rushing through more patents, it only encourages a bigger and bigger backlog. In treating the symptoms, rather than the actual disease, we're making the disease much, much worse.

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You answer this gentleman, and then proceed to once more level criticism in my direction.

1. I am not "defending" the USPTO. I am noting that the data noted on Patently-O is incomplete.

2. I am defending the examining corps against those who seem want to slam its members as a whole for incompetency. This is simply untrue.

3. I have never used such data to support my comments here. Why you persist in making comments such as this eludes me. You have a deep seated antipathy towards patents and other forms of so-called IP. I understand your reasons. If I happen to make a comment regarding one or more of your reasons, my intent is to try and establish the factual basis for such comments. For example, I have never taken a position on whether or not an issued patent is "new, useful and nonobvious". To say by the waving of hands "Look was the USPTO did. It issued yet another bad, blatantly obvious patent." lacks any substantive basis without having carefully reviewed the facts in evidence.

Yet another example are broad declarations that a patent has essentially locked up the pursuit or research in particular areas of technology. Claims count, and such declarations without having read and understanding the actual scope of such claims is once again the expression of an opinion without any then existing basis in fact.

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I can't get over this.... Have you ever innovated, like have you ever created anything technical? Or are you a lawyer? Because those of us who create and contribute, understand the damage done by these patents. It's accepted broadly by the "creative class" in technology (not the CEOs and lawyers, but those that create) that we're hindered by examiners inability to understand what they're approving. That, is what it is. Providing you with "evidence", no matter how complete, would not be likely to change your mind... I have a hunch.

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"Innovation" and "invention" are words that are far too often used interchangably, and this leads to needless confusion in discussions.

"Innovation" as used here seems to mean one's taking an idea of some sort, giving it form of some sort, and then moving it out into the marketplace in the form of goods or services or both. The idea need not be of a character that could at some point in time be sufficiently defined that a patent could eventually be secured for it. E.g., the "Pet Rock", the services provided by companies such as the principals on this site, etc.

"Invention" is quite another thing. It is taking what is known as a "conception" and then proceeding to the point that the invention is "reduced to practice". It does not involve the subsequent steps of things such as productization, tooling development, manufacturing or other process development, marketing, distribution, etc., steps that are subsequently undertaken if one wants to take an invention from the lab to the marketplace.

These are the general distinctions I draw between the two terms, and comments I may happen to make are with these distinctions in mind.

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MM and everyone on techdirt harps at the difference between Innovation and invention ad-nauseam. I know the difference, the fact that you are irrelevantly defining it to me suggests that you are too ignorant and unsophisticated to argue at a more sophisticated level so you must resort to defining primitive concepts that everyone is already aware of to try and make yourself look smart.

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Have I ever created anything technical? Yes, but nothing I ever decided I would try and build a business around. I was much too busy taking care of other things and interests.

Am I a lawyer? Yes. How is it I feel comfortable working in a technical world? My pre-law background includes undergraduate and graduate work in general engineering disciplines, with particular emphasis in aero engineeting, and within the aviation industry. My post-law background includes constant technical liaison with engineers and scientists over a wide spectrum of technical disciplines, including, among others, imaging technologies, semiconductor products, chemical process, aircraft design telecommunications, software development, etc.

Simply put, I consider that I ceased to be an engineer the day I began my pursuit of a law degree, but that I have used my background on a daily basis to effectively communicate and work with those who have continued to work in engineering and scientific disciplines. It is a sad fact of life, but it is my experience that within large, technology driven companies only a very few lawyers can enter into business discussions with a room full of technical personnel and actually know what they are talking about. How can you communicate effectively with the technical side of the house when the most technical word you have in your vocabulary is "widget"?

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"It is a sad fact of life, but it is my experience that within large, technology driven companies only a very few lawyers can enter into business discussions with a room full of technical personnel and actually know what they are talking about."

Which is exactly why lawyers shouldn't be allowed to destroy technology with patents.

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Ok, you and I did the exact same thing, I went the other way though. Seeing how crazy the system has gone, it makes me wonder if I should have went the other route. Not for profit as much as activism. Anyway, I'm just saying that, much as you just pointed out. Very Often, especially, at the turn of the century, the lingo was made up on the spot. No one at the USPTO really knew what they were doing. It was impossible actually, since the field of technology advances at light speed. Which is why we need relief from 20 year monopolies over concepts. They HAVE let lots of bad patents through. I don't speculate vis-a-vis their motive.

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The charts were not prepared by the USPTO. They were prepared by selecting some data from the USPTO archives. My observation is that the charts provide an incomplete picture when the discussion is of the type raised here, i.e., they are back to rubber stamp granting. This does not necessarily follow since denial and abandonment rates are equally important to present a more accurate picture from which to draw some conclusions.

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"Approvals are pretty much meaningless without also knowing about what is being rejected."

So the fact that the patent office approves a patent for swinging sideways on a swing, having your pet chase a laser pointer for exercise, or (in Australia) the wheel is meaningless without knowing what patents they rejected?

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How about the fact that said system awards patents for things it is explicitly prohibited from awarding by definition (series of mathematical instructions)? Would that be sufficient to indict the entire system?

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Since I rather doubt you are familiar with Section 101 jurisprudence and the tests laid down by the Supreme Court, I guess I have to answer your question.

The answer is "Of course not."

For some reason many people here are inclined to indict the system, using as one basis the belief that examiners at the USPTO are basically fools. They could not be more wrong. In any large organization there are individuals whose performance is less than stellar/exemplary. The USPTO is no different. However, such individuals make up only a very small minority.

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The elitism reference was to the suggestion that persons in the examining corps are somehow less deserving of respect for their technical expertise than those who have the same expertise but use such expertise while in the employ of companies.

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Ok, maybe they did, but such is a pragmatic statement. I expect a doctor to be better at being a doctor than a lawyer, and likewise I expect someone working in industry to be better at knowing what's obvious and what's not and what has prior art vs what doesn't than those who do not. It's not elitism, it's common sense. Otherwise one can say that, because you go to a doctor for your medical advice and not a lawyer, you are practicing elitism.

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and another problem is that things change so fast that if a patent examiner has been working in industry for 25 years and has later been a patent examiner for 10 years, what maybe considered non obvious to the patent examiner maybe considered obvious to everyone in the industry at the time since the patent examiners expertise is obsolete.

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This has an intuitive appeal, and perhpas has merit in some situations. However, and while it is by no means an immutable rule, I believe many people would be surprised to learn that some of the very few people first exposed to "up and coming" new technologies and their applications are persons within the examining corps.

Using just one example, even before Bell Labs made its announcement back around 1948 that it had just come up with a new device that we all now recognize as a "transistor", applications for this new device were already on file and being reviewed by the examining corps at the USPTO.

The point to be made is that one should not dismiss the level of technical expertise of persons within the USPTO just because every now an then some person comes up with a silly invention that for reasons unknown they decide to patent. While these really silly things result in a lot of flack being directed at the USPTO, that flack in large measure is unwarranted when it is generalized and asserted to apply across the board.

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Using just one example, even before Bell Labs made its announcement back around 1948 that it had just come up with a new device that we all now recognize as a "transistor", applications for this new device were already on file and being reviewed by the examining corps at the USPTO.

And had already been invented (and published) in Russia many years earlier. Nice example there.

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and another example of where patents hinder progress.

"Bell Lab attorneys soon discovered that Shockley's field effect principle had been anticipated and patented in 1930 by Julius Lilienfeld"

In other words, no one bothered to continue to work on the problem UNTIL after the patent expired. Typical example of how patents only hinder innovation. Those who originally got the patent neglected it and no one else was allowed to work on it until after the original patent expired.

Chances are, if it weren't for the original patent, this thing would have been solved long before as others wouldn't be afraid to work on it in fear of infringement. More examples of why patents need to go away.

What patents often end up doing is locking up everyone else from innovating until the patent expires by taking away much of their incentive to innovate being that someone else will simply have a monopoly over the profits.

I think this might be close to setting a "Re:" record. In threaded view this and several prior comments by each of us are single word lines of text. It would be helpful if there was some way to allow in flattened view the earlier post to which a comment is made to be identified.

I already came up with a solution to this and posted it on techdirt a while ago. Have a link below each comment (right next to where it says reply to this, link to this, view in thread. One can say something like

(replied from)

that, upon someone clicking, it bounces the screen to the post that the response is a response to. Then, on the parent post there can be a button (1, 2, 3, 4, 5) that, upon clicking, jumps you to those responses.

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The USPTO may have, in one time or another, been great for making sure there was innovation in a market place. Nowadays, you have a lot of bureaucrats gumming up the works. It's highly doubtful that these people will look to read long documents for repeated or similar patents. Instead, it's far easier to just let it through and the judicial system sort it out.

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I must ask, do you have experience working with the USPTO, and in particular the examining corps? If you did you would very quickly realize that the vast, vast majority of applications that are filed are initially rejected over prior art. The burden shifts to the applicant to present arguments traversing the rejection. This exchange continues over what is usually a prolonged period of time until one of two things happen; either the patent is denied and any appeals uphold the denial or the claims of the application are deemed to sufficiently distinguish over the cited art that an application is approved and passed to issue.

In other words, suggestions that the USPTO is an "approval rubber stamp" are simply wrong.

Once a patent has issued, this does not mean that the patent will remain in full force throughout the term currently specified as 20 years from the date the application is initially filed. This is due to the fact that over the term of the patent maintenance fees for keeping the patent in force must be paid. These fees are assessed three times based upon a statutory schedule, and the fees escalate with each subsequent assessment. What many persons are seemingly unaware of is that many patents are abandoned when the first fee is due, even more when the second is due, and still more when the third fee is due. By the time the second and third fees roll around most patents are abandoned. As a general rule, only patents of particular interest and importance to a patentee remain in force for the full term.

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No, though doubtless some do make it through. Remember, though, it is not always possible to identify the most relevant prior art during the examination process. For example, how does one go about finding a student thesis residing in the library of a foreign country that happens to contain information that essentially describes an invention for which a US patent is being sought? What about a technical paper that is subject to a security classification such as "Secret".

There is, unfortunately, no magic bullet by which all prior art is immediately brought to the fore. Those who prosecute applications on behalf of inventor would just as much as anyone else like to have such a bullet. No one wants to work on a project using anything less than the best information available.

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The problem is that these patents are being "enforced". We see stories of these things being used regularly now. You cannot read a days worth of posts here without finding someone getting threat letters for violating a bad patent.

Unfortunately, there are people / companies out there now that are buying up these bad patents and sending threat letters looking for settlement. The patent thickets required to produce electronics these days are costing us lots of money and lots of lost new products.

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Actually, it's gotten a bit better in the last 4-5 years. Before that it was just dozens every day. The initial absurdity started when the "idea economy" made the assertion that it was the idea that was everything, the implementation was just incidental.

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The problem here is often one of perception. Just because a patent issues that seems to be of dubious validity does not mean this is actually the case. I have seen this happen many times when talking with senior scientists and engineers who happened to bring some of these to my attention. Much more often than not an analysis of what was actually described and claimed led them to do a complete 180.

Why isn't there an incentive to patent submitters to submit a legitimate patent. Each patent submissions should be allowed only one retry. If the patent gets rejected again, then they need to resubmit, pay the fee again and to the back of the line it goes.

This would mean more money for the patent office to hire more staff and in turn process patents faster.

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Quite unlike copyright terms that have gone through the roof, the term of patents has remained remarkably stable. The original term in 1790 was 14 years. In the mid-1800's a term of up to 21 in some cases was authorized, but then it was scaled back to 17 to conform to certain treaty obligations. It remained at 17 years (as measured from the date a patent issued) until 1995 when the term was changed to cover 20 years from the date an application was filed. In actual practice this works out to about 17 years from the date of issueance. This change did not come about to try and give applicants a longer patent term, but rather to try and address a situation that previously existed where one could keep delaying the issuance of a patent for decades, leading to situations known as "submarine" patents.

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The majority of the patents don't even make it to market (at least not by the patent holder if at all), all patents that don't make it to market are bad patents, so right there the majority of patents are bad patents.

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Not really. Some never make it to market because there is something else that is, for example, better or cheaper or easier to manufacture or (fill in the blank). Perhaps it has been OBE. Who knows? That does not make it "bad". I daresay that most inventions, whether patented or not, never make it to market, or if they do do not achieve success to any remarkable degree.

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"Some never make it to market because there is something else that is, for example, better or cheaper or easier to manufacture or (fill in the blank)."

So then you agree that all such patents should be negated because they do nothing to promote the progress. That way if someone else wants to bring it to market they can, especially since that someone else is likely to be unaware that the patent even exists when they want to bring the product to market (because they came across a use) and hence that person will not likely benefit from anyone owning a patent on it and so the patent does nothing to promote the progress. If it doesn't make it to product it's a bad patent. It's a waste of money to acquire (money that can go into innovation) and companies often acquire it simply to have a larger patent portfolio just to patent troll or to prevent competitors from entering the market or for defensive purposes, none of which promote the progress.

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"Please note my use of the word "usually"."

So then you must be psychic because you somehow know the types of patents that I usually discuss. If you meant you as in the plural, that certainly is not true here on techdirt. I've read this blog long enough, I read the comments, what you are saying is not true neither here nor on many other blogs that discuss patents.

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and not only do I know this, but everyone in the comments here pretty much knows it as well, at least those who read the comments. So making obviously false statements doesn't help your case and it won't help you to keep insisting that your falsehood is true.

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and by one that ever does this I mean one that ever does this and refers to it as a submarine patent of course. Of course we discuss situations where patents were previously issued and are now just being asserted against others, but we don't refer to them as submarine patents simply for that.

If Nathan Myhrvold's suggesting creation of a patent-backed security...

I came across an interesting video of Nathan Myvrhold a while back, and if I can find it, I'll share it.

In the conversation Nathan was suggesting that companies look to expanding their patent portfolio. Basically, he seemed to be suggesting creation of a new US financial bubble based on securitization of a patent portfolio.

Considering how things panned out with Real Property and mortgage-backed securities, I am worried about securities and bonds backed by Intellectual Property. The USPTO would seriously have to to re-evaluate it's role in such a business climate.

Re: If Nathan Myhrvold's suggesting creation of a patent-backed security...

Every business has been watching the Trolling firms like Intellectual Ventures with envy. They have zero liability, and that essentially gives them a money press. When they want more they simply ask/demand for more. If they want more than that, they simply sue/threaten to sue.

Well, at this time, there are massive volumes of bogus/redundant patents being amassed in Asia, presumably, based on the infallible tolling model established by those firms... These portfolio companies will likely come out of China, and they're intent is to use the TRIPS agreement, IP Alliance AKA: "Import Banning" via the (WIPO) to extort huge money out of innovative Businesses. Unlike other companies here in the US they have no incentive to not sue... so that should be interesting. The same lobbies that ordered up international IP enforcement, suddenly find themselves on the receiving end. That'll be that.

A hidden jem

US Patent application 20100099393 is very obvious for a concept called "Roaming". My memory is hazy, but I think multi-mode cell phones have existed since something like the 1990s. I think AT&T even sold multimode 6160 TDMA/Analog phone that displayed if it was on an analog or digital network.

Re: A hidden jem

Hmm... Look at figures 7A, 7B, 12 and 13 in the patent application.

This could be a patent application for app-based network selection. It would probably be used in a non-network neutral environment and run counter of a wireless network neutrality strategy because it varies network selection, and data pricing on a per-application basis.

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Does your comment imply that there is something about this document that discloses something new and perhaps useful?

This is not a set up, but just a question made out of curiosity. The tendency is to pounce on many applications and patents by saying "How could this be? It's so obvious." Many times, however, upon closer reading details start to emerge that were not fully appreciated at the outset.

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Most of the instances on Techdirt and most of the instances where the USPTO approves patents. I bet I and others can come up with more examples of bad patents than you can of good patents. and by good patents please demonstrate, with reasonable evidence, that said inventions would not exist without patents. Patents are a free market distortion so the burden is on you to justify patents, not on me to justify their lack.

Also, when you say

"Many times, however, upon closer reading details start to emerge that were not fully appreciated at the outset"

That maybe true in your experience whereby details that you previously did not fully appreciate from the outset start to emerge but that maybe not true for others. The fact that some detail pops up that you were personally unaware of that in your personal opinion makes the patent more valid does not in any way make the patent anymore valid.

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Reads almost like a data recovery tool, kinda like the data recovery tools that have been around for a long time now.

Read the data. Note the read value. Read it again. Note the read value. Read it a third time. Note the read value. If two times are consistent and the third time is different assume the two consistent times is the value.

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(now, it maybe the case that there is something there I missed, I dunno, but how is it a non obvious extension of technology that already exists is my question. Not to mention I've never seen your patent complained about here on techdirt)

Approving junk patents only makes it more lucrative to file ever more ridiculous patent applications, which only increases the backlog. In rushing through more patents, it only encourages a bigger and bigger backlog.
Which as you point out works to the advantage of the patent examiners as well.

Basically you have a vicious cycle where the patent filers are awarded increasingly ludicrous patents which causes them to file even more while at the same time you have patent examiniers with their "when in doubt, approve" mentality getting awarded for granting increasingly ludicrous patents. They are feeding each other and leaving consumers and actual innovators to pick up the check.

Consider this...

While it's easy to say that the PTO is approving bad patent applications, there's another problem.
Far too often, examiners reject an application quickly, for no apparent reason. Presumably the huge workload and the incentive system give them an incentive to make a quick decision, whether it's right or wrong, approve or reject. And then they typically stick to their decision, regardless of the facts.

I'm an engineer, innovator and inventor, with lots of patent activity. I speak from that experience.

If you want to fix the system, find a good way to give inventors an incentive NOT to file frivolous applications, including a way to make sure that the judgment of frivolous or good is itself a robust judgment.

Cancer Treatment duplicate patents

The FDA & NCI filed duplicate patents of a previously patented cancer treatment - patents originally granted to Dr. Stanislaw Burzynski. Of course they tried to have him thrown in jail so they could run with it, yet the FDA & NCI still had their patents approved by the patent office even though Burzynski had the very same patents approved previously. It's pretty insane, for more on this story go to http://www.burzynskimovie.com

Re: Cancer Treatment duplicate patents

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and if it weren't for the Internet the FDA and the NCI would probably have gotten away with this. They're so used to getting away with so much fraud because they're used to a broken mainstream media that censors all of this important information from the public preventing an ignorant public from putting political pressure on the courts to make a decent decision. Our system is just so incredibly broken it's very depressing. Hopefully now though cancer can actually get better treatment.

Patent Abuse

Or Patently abused. Sure glad Einstein didn't patent his mathematical formula: E=MC*. Or our ancestors didn't patent the use of the words we actually speak and write with. I need a thought net to capture all those patentable thoughts before any one else does. Good Grief!

Patents

So, Mike - you are chosen for a prestige job, by a "board" that represents many of your "customers". You are charged with maintaining profitability (self-funded), and judged by how much business you do, how well you handle expenses, and privately, how well you treat the "board's" friends (big business).
What would you do? Try to get fired? Quit? How long would it take before someone in that position started doing destructive things (and the present system IS destructive, no doubt about it!)?
The real problem is two problems:
1. Making a public service self-funding, and
2. The "board" (Congress) belonging to big business.

USPTO tougher than you think

Before you get too worked up about the USPTO rubber stamping applications, at least in the business method area they are still issuing only 1 allowance for every 20 rejections. More details on IP Watchdog.